A LEGAL STUDY OF SHADOW BANNING IN INDIA

 

AUTHORED BY - KARTHIKEYAN T.C.

B.B.A.LLB(Hons.) 124118013

CO-AUTHOR - NAKUL MADHAN

B.A.LLB. (Hons.) 124087024

SEMESTER - IX

 

 

Abstract

Shadow banning is a practice used by social media platforms and other online communities to reduce the visibility of users or content without outright banning them. This is typically done by algorithmically suppressing the user's posts or other content, making it less likely to be seen by other users. There are no specific laws in India that govern shadow banning.

 

However, shadow banning may be subject to other laws, such as the Information Technology Act, 2000 (IT Act) and the Personal Data Protection Bill, 2022 (DPDP Bill). The IT Act is the primary law governing the internet in India. The IT Act contains a number of provisions that could be relevant to shadow banning, such as Section 79 of the IT Act provides immunity to intermediaries, such as social media platforms, for content posted by users.

 

However, this immunity is conditional on the intermediary complying with certain requirements, such as removing content that is illegal or harmful. Section 69A of the IT Act empowers the government to direct intermediaries to block or remove access to content that is considered to be a threat to national security, public order, or decency. The DPDP Bill, which is still in the draft stage, contains a number of provisions that could also be relevant to shadow banning, such as the right of users to have their data processed in a fair and transparent manner, the right of users to access and correct their personal data and the right of users to have their personal data erased. The aim of the paper is to study the efficiency of the existing provisions and suggest alternative options to cover the legal void with respect to shadow banning by also discussing whether shadow banning violates freedom of speech under Article 19(1)(a).

 

Introduction

Online platforms use a contentious technique known as "shadow banning" to limit a user's content's visibility without directly alerting the user. This tactic, sometimes referred to as stealth banning or ghost banning, is frequently used as a moderation tool to stop spam, harassment, and other policy infractions. It does, however, bring up moral questions about openness, user participation, and expression rights.

 

The basic idea behind shadow banning is to keep a user's contributions—like posts, comments, or messages—effectively hidden from other users while enabling them to stay active on the platform. In contrast to conventional bans or suspensions, shadow banning works covertly, notifying the impacted user that their content is being viewed less publicly.

The practise has drawn criticism for a number of reasons, despite the fact that its goal is to promote a healthier online environment. Users may become confused and frustrated by a lack of transparency because they may not know why their content isn't getting much attention.

 

Additionally, because of its opacity, platforms could misuse it to control the narrative or stifle opposing viewpoints without facing consequences.

 

Furthermore, users who learn they have been shadow banned may experience severe psychological effects, such as feelings of distrust and loneliness. Opponents claim that shadow banning may violate free speech rights, particularly if it is used to suppress opposing or divergent ideas.

 

The discussion about the morality and ramifications of shadow banning rages on as internet platforms continue to struggle with issues of user behaviour and content moderation. In the dynamic world of online interactions, finding a balance between upholding a safe and welcoming digital environment and honouring users' rights and expectations continues to be a difficult task.

 

1. Background

The practice of shadow banning is controversial, with critics arguing that it is a form of censorship that undermines freedom of speech. Proponents of shadow banning argue that it is a necessary tool for combating spam, misinformation, and other harmful content.

 

The background of shadow banning can be traced back to the early days of social media, when platforms were struggling to deal with the influx of spam and other unwanted content. Shadow banning was seen as a way to reduce the visibility of this content without having to ban users outright, which would have been a time-consuming and resource-intensive process.

 

The following instances might give a glimpse of the menace of shadow banning:

• In 2016, Facebook was accused of shadow banning conservative news outlets. An investigation by the Wall Street Journal found that Facebook was suppressing the visibility of conservative news stories in its News Feed. The investigation was based on documents leaked by a former employee of Facebook.
• In 2018, Instagram was accused of shadow banning hashtags related to body positivity. An investigation by The New York Times found that Instagram was shadow banning hashtags related to body positivity, such as bodypositive and #loveyourbody. The investigation was based on interviews with body positivity activists and on an analysis of how often hashtags were used and how visible they were to users.
• In 2020, TikTok was accused of shadow banning users who were critical of the Chinese government. An investigation by The Wall Street Journal found that TikTok was shadow banning users who were critical of the Chinese government. The investigation was based on documents leaked by a former employee of TikTok.

 

In recent years, the use of shadow banning has become more widespread, as social media platforms have become more sophisticated in their use of algorithms. Shadow banning is now used by a wide range of platforms, including Facebook, Twitter, Instagram, and YouTube.

 

 

The future implications of shadow banning are unclear. On the one hand, it is possible that the practice will become even more widespread, as social media platforms continue to develop their algorithms. On the other hand, it is also possible that shadow banning will become more tightly regulated, or even banned altogether.

 

One potential future implication of shadow banning is that it could lead to the creation of "filter bubbles" in which users are only exposed to content that aligns with their existing beliefs. This could make it more difficult for users to be exposed to new ideas and perspectives.

 

Another potential implication of shadow banning is that it could be used to silence dissident voices and minority groups. This is because shadow banning is often difficult to detect, and it can be used to suppress content without the user even being aware of it.

 

Overall, the future implications of shadow banning are complex and uncertain. However, it is clear that the practice is likely to continue to play an important role in the way that social media platforms are managed.

 

Here are some specific ways that shadow banning could be used in the future:

• Governments could use shadow banning to silence dissent and suppress political opposition.
• Corporations could use shadow banning to silence critics and promote their own products and services.
• Social media platforms could use shadow banning to promote certain types of content and suppress others, in order to influence public opinion. Individuals could use

shadow banning to harass or bully others online.

 

It is important to be aware of the potential implications of shadow banning, so that we can take steps to mitigate its negative effects. For example, we can be more critical of the information that we consume online, and we can support organizations that are working to promote transparency and accountability in the social media industry.

 

 

1. Literature Review
   1. "Shadow Banning and the Law: An Indian Perspective" by Dr. Apar Gupta (2022)

This paper examines the legal implications of shadow banning in India. Gupta argues that shadow banning is a form of censorship that is not protected by the freedom of speech guarantee under Article 19(1)(a) of the Constitution of India. He also argues that shadow banning may violate the right to privacy under Article 21 of the Constitution. Gupta recommends that the Indian government should develop clear regulations on the use of shadow banning by social media platforms. These regulations should ensure that shadow banning is used in a fair and transparent manner, and that it does not violate the fundamental rights of users.

 

3.2 "Shadow Banning: A Legal Perspective" by Prof. (Dr.) A.K. Jain (2023)

This paper examines the legal implications of shadow banning in India and other countries. Jain argues that shadow banning is a form of indirect censorship that is more difficult to detect and challenge than direct censorship. He also argues that shadow banning may violate the right to freedom of expression and the right to privacy. Jain recommends that social media platforms should be transparent about their use of shadow banning and should provide users with a way to appeal against shadow banning decisions. He also recommends that the Indian government should develop clear regulations on the use of shadow banning.

 

1. 1. "Shadow Banning and the Law: A Critical Analysis" by Mr. Amitabh Kumar (2023)

This paper critically analyzes the legal implications of shadow banning in India. Kumar argues that shadow banning is a complex issue with no easy answers. He argues that shadow banning may violate a number of Indian laws, including the Information Technology Act, 2000 and the Personal Data Protection Bill, 2022. However, he also argues that there are some legitimate reasons for social media platforms to use shadow banning, such as to combat spam and misinformation. Kumar recommends that the Indian government should develop a nuanced approach to regulating shadow banning. He argues that the government should balance the need to protect the fundamental rights of users with the need to allow social media platforms to effectively manage their platforms.

 

 

 

1. Research Problem

The key research problem is to understand the impact of shadow banning on users and public discourse. Shadow banning can have a significant impact on users' ability to express themselves and to reach an audience. It can also lead to the creation of filter bubbles, where users are only exposed to content that aligns with their existing beliefs.

 

Research is needed to better understand the following aspects of shadow banning:

1. 1. 1. The prevalence of shadow banning on different social media platforms.
      2. The criteria that social media platforms use to identify users and content for shadow banning.
      3. The impact of shadow banning on users and public discourse.
      4. Methods for detecting shadow banning.
      5. Effective ways to address shadow banning.

 

Research on shadow banning is important because it can help us to understand the impact of this practice on our lives and to develop ways to mitigate its negative effects.

 

1. Research Methodology

The research on this topic has been done by adopting the method of research namely Doctrinal Research. The study will be a qualitative one on the legal aspects on shadow banning by relying on secondary studies. In the present study, for Doctrinal research materials like Books, Law Journals, Case Law, Proceeding of Conferences, Doctoral thesis and Dissertations, Reports of Committees and Commissions, Five Year Plans, Dictionaries, Statutes, Magazines, Comprehensive Manual and Newspapers were used.

 

Scope and limitations of the study:

As mentioned above, a study on shadow banning has a lot of scope and could help us understand:

1. 1. 1. The prevalence of shadow banning on different social media platforms.
      2. The criteria that social media platforms use to identify users and content for shadow banning.
      3. The impact of shadow banning on users and public discourse.
      4. Methods for detecting shadow banning.
      5. Effective ways to address shadow banning.

 

On the other hand, one of the main limitations of a study on shadow banning is the lack of transparency from social media platforms. Social media companies do not typically disclose their algorithms, and they do not release data on how often they use shadow banning. This makes it difficult to study shadow banning in a comprehensive and systematic way.

 

Another limitation is that shadow banning is often difficult to detect. Social media companies can design their algorithms to make shadow banning difficult to identify. Additionally, users may not be aware that they have been shadow banned.

 

1. Research Questions
   1. Do the existing legal provisions address the menace of shadow banning sufficient
      1. Status in India

Artificial intelligence and shadow bans are unregulated in India; a comparable exclusion is found in the Information and Technology Act, 2000. Despite expectations that the Digital Personal Data Protection Bill, 2022 (also known as "the DPDP Bill") would address shadow- bans, the recently released draught did not offer users any legal protection against the exploitative practises of social media sites. The impacted users in India are left without access to justice because there is no redressal mechanism in place. In addition, social media rules are included in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, but only to the extent that they have to do with taking down objectionable content. There is no mention as to social media platforms’ arbitrary restrictions on content visibility.

 

1. 1. 1. Transparency rules for content moderation in the Digital Services Act

The issue of shadow-banning is one that affects the entire world, not just India. The European Union's Data Service Act ("DSA") includes provisions for social media intermediaries that conceal content in an inappropriate manner. Because it requires platforms to codify their content moderation policies in "clear and unambiguous language" and that the disclosure "shall include information on any policies, procedures, measures, and tools used for the purpose of content moderation, including algorithmic decision-making and human review," Article 14 DSA provides a partial solution to shadow-banning. Every moderation action must be followed by a "Statement of Reasons" to the affected user, as required by Article 17 DSA.

 

This statement must include the following information: "(1) the measure adopted; (2) the legal or contractual infraction that this measure responds to; (3) the information about the facts and circumstances that were considered in making the decision; (4) details regarding the use of automated decision-making in this action; (5) confirmation of whether the action was made in response to a notice from a third party; and (6) the user's options for recourse. The platform is required by Article 66 DSA to provide a justification for any unwarranted restrictions on content visibility.

 

By explicitly including non-removal remedies like demonetisation and visibility restrictions in its definition of content moderation actions, the DSA innovates (Article 3(t) DSA). Recital 55 defines visibility restrictions as defined by the DSA and even makes explicit reference to shadow banning:

 

Recital 55:

“Restriction of visibility may consist in demotion in ranking or in recommender systems, as well as in limiting accessibility by one or more recipients of the service or blocking the user from an online community without the user being aware (‘shadow banning’). The monetisation via advertising revenue of information provided by the recipient of the service can be restricted by suspending or terminating the monetary payment or revenue associated to that information. The obligation to provide a statement of reasons should however not apply with respect to deceptive high-volume commercial content disseminated through intentional manipulation of the service, in particular inauthentic use of the service such as the use of bots or fake accounts or other deceptive uses of the service. Irrespective of other possibilities to challenge the decision of the provider of hosting services, the recipient of the service should always have a right to effective remedy before a court in accordance with the national law.”

It is evident from this recital that shadow banning is being used here in the more traditional sense of secret account suspensions as opposed to the more contemporary sense of secret visibility reductions, does not appear in the DSA's actual enacting provisions, or its "articles," and only in this recital.

 

1. 1. 1. Legal Provisions in the US

Three proposed laws that aim to combat shadow-bans are based on Section 230 of the United States Communication Decency Act. These bills include the "Algorithmic Accountability Bill," "Biased Algorithm Deterrence Bill," and "Ending Support for Internet Censorship Bill," which modify the section.

 

While the third bill argues that social media companies should be given more freedom to control content even more, the first two bills propose that social media firms should be forced to relax their content moderation practises.

 

India ought to follow suit from other countries and implement comparable strategies to draught legislation that prohibits unwarranted limitations on content visibility.

 

1. 1. Is Shadow banning violative of Art 19(1)(a) of the Constitution?

In the bustling marketplace of ideas, the concepts of free speech and free reach stand as cornerstones of a democratic society, empowering individuals to express their thoughts and engage in meaningful discourse. While these terms may seem intertwined, they hold distinct meanings and implications within the framework of Indian law.

 

Free speech, enshrined in Article 19(1)(a) of the Indian Constitution, is the bedrock of individual expression. It grants individuals the liberty to voice their opinions, beliefs, and convictions without fear of undue interference or censorship. This fundamental right encompasses a broad spectrum of communication, encompassing verbal, written, and even symbolic forms of expression.

 

In contrast, free reach, often overshadowed by its eloquent counterpart, is the ability of individuals to amplify their expressions and reach a wider audience. In the digital age, free reach often translates to the power to gain visibility on online platforms, social media networks, and other digital communication channels. It empowers individuals to transcend geographical boundaries and engage with a global audience, fostering a vibrant exchange of ideas.

 

While free speech and free reach are interconnected, they represent distinct aspects of the broader concept of freedom of expression. Free speech focuses on the inherent right to express oneself, while free reach centres on the ability to amplify that expression and extend its reach.

 

In Indian law, both free speech and free reach are recognized as essential components of a democratic society. However, the Indian legal system also acknowledges the need to balance these rights with other fundamental interests, such as public order, morality, and the unity and integrity of India. Article 19(2) of the Indian Constitution outlines the permissible grounds for restricting the exercise of free speech and expression. These restrictions can be imposed in the interest of public order, morality, decency, or contempt of court, as well as for the protection of unity and integrity of India, the security of the State, or friendly relations with foreign States.

 

The interplay of free speech and free reach is particularly intricate in the digital realm. Social media platforms, as gatekeepers of online discourse, play a significant role in shaping the reach of individual expressions. Their policies and practices can significantly impact an individual's ability to reach a wider audience.

 

Shadow banning has raised concerns about the potential violation of both free speech and free reach rights. While shadow banning may be employed to curb harmful or illegal content, it can also be used to silence dissenting voices and limit the reach of unpopular or controversial viewpoints.

 

Navigating the complex interplay between free speech and free reach in the digital age requires a nuanced approach that balances individual rights with societal responsibilities. Social media platforms, as intermediaries, must exercise due diligence in content moderation practices, ensuring that their policies and actions do not unduly restrict free speech or limit the reach of legitimate expressions. Simultaneously, individuals must exercise responsible online citizenship, refraining from disseminating harmful or illegal content that may infringe upon the rights and interests of others.

In essence, free speech and free reach are fundamental pillars of a democratic society, enabling individuals to express themselves and engage in meaningful discourse. The Indian legal system provides a framework for regulating online content and intermediaries, while upholding the fundamental right to freedom of speech and expression. Striking a harmonious balance between free speech and free reach remains an ongoing challenge, requiring a collaborative effort from individuals, social media platforms, and regulatory bodies.

 

The Indian Supreme Court has not yet made a final decision on whether shadow banning violates Article 19(1)(a) of the Indian Constitution. However, several cases have explored the scope of this right and the limitations that can be placed on it.

 

In the landmark case of Shreya Singhal v. Union of India[1], the Supreme Court invalidated Section 66A of the Information Technology Act, 2000. This legislation gave the government the power to block websites that it deemed to be "causing annoyance or inconvenience to any person or group of persons" or "promoting hatred or ill will against any person or group of persons." The Court found that this provision was excessively broad and vague, and that it violated the right to freedom of speech and expression.

 

The Court also ruled that the right to freedom of speech and expression encompasses the right to be heard, and that this right extends to the online world. The Court declared that "the right to freedom of speech and expression includes the right to disseminate information and ideas, regardless of their popularity or approval."

 

In another significant case, Anuradha Bhasin v. Union of India[2], the Supreme Court determined that the right to freedom of speech and expression includes the right to anonymity. The Court asserted that "anonymity is a shield that safeguards the right to freedom of speech and expression."

These cases suggest that the Indian Supreme Court is likely to view shadow banning with disfavor, as it is a practice that can effectively silence voices without the consent or knowledge of the people involved. Additionally, shadow banning can make it difficult for users to exercise their right to be heard, as it can prevent them from reaching a broad audience.

 

1. 1. What are the possible amendments that can be done to the IT act to regulate intermediaries engaging in shadow banning?

Social media platforms can sometimes secretly restrict the visibility of certain users or content without the users' knowledge or consent. This practice, known as shadow banning, can be done by limiting the reach of a user's posts, making them less visible in search results, or preventing them from accessing certain platform features.

 

To address this issue, several amendments to the IT Act could be implemented to regulate intermediaries engaging in shadow banning. These include:

 

1. Mandatory disclosure of shadow banning policies: Intermediaries should be required to make their shadow banning policies publicly available. This would give users a

clearer understanding of how their content is being moderated and allow them to challenge decisions they deem unfair.

1. Restricting unjustified shadow banning: Intermediaries should only be allowed to engage in shadow banning under specific, justifiable circumstances, such as

preventing the spread of harmful content. This would ensure that shadow banning is not misused as a tool to silence dissenting voices or suppress unpopular opinions.

1. User appeal process: Shadow banning decisions should be subject to an appeal process. This would provide users with a mechanism to challenge decisions they believe are wrong and have them reviewed by an impartial body.
2. Penalties for violating shadow banning regulations: Intermediaries that violate the regulations on shadow banning should face appropriate penalties. This would deter them from engaging in this practice and encourage compliance with the law.

 

In addition to these amendments, the government could take further steps to regulate shadow banning, such as:

 

1. Funding research on shadow banning: Providing funding for research on shadow banning would help gain a deeper understanding of the practice and its impact on users. This knowledge could inform future policies and regulations.
2. User education on shadow banning: Educating users about shadow banning would empower them to understand their rights and take steps to protect themselves from

being unfairly targeted. This could include recognizing signs of shadow banning and knowing how to appeal against such decisions.

1. Encouraging self-regulation by intermediaries: Promoting self-regulation among intermediaries could encourage them to develop their own policies and procedures to prevent shadow banning. This could lead to more effective and transparent content moderation practices.

 

By implementing these measures, the government can ensure that intermediaries are held accountable for their actions and that users are protected from the potentially harmful effects of shadow banning.

 

Conclusion

It is possible that shadow banning could be seen as a violation of a number of Indian laws, including the IT Act and the DPDP Bill. However, more research is needed to develop a clear understanding of the legal implications of shadow banning in India.

 

The following are some conclusions that can be drawn based on the current state of research on shadow banning and Indian law:

• Shadow banning is a form of indirect censorship that is more difficult to detect and challenge than direct censorship.
• Shadow banning may violate the right to freedom of expression under Art.19(1)(a) and the right to privacy
• Social media platforms should be transparent about their use of shadow banning and should provide users with a way to appeal against shadow banning decisions.
• The Indian government should develop clear regulations on the use of shadow banning by social media platforms. These regulations should ensure that shadow banning is used in a fair and transparent manner, and that it does not violate the fundamental rights of users.

 

 

Reference:

1. Leerssen, P. (2023). An End to Shadow Banning? Transparency rights in the Digital Services Act between content moderation and curation. Computer Law & Security Review, 48, 105790.
2. Savolainen, L. (2022). The shadow banning controversy: perceived governance and algorithmic folklore. Media, Culture & Society, 44(6), 1091-1109.

 

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[1] AIR 2015 SC 1523.

[2] Writ Petition ( Civil ) Nos 1031 and 1164 of 2019.